Recent Settlement Illustrates How NOT to Reduce Group Health Plan Costs

In an example of what NOT to do to as a tactic to manage group health costs, Dave & Busters was recently ordered to pay $7.4 million to workers in the proposed settlement of a class action lawsuit alleging the company reduced employees’ hours to render them ineligible for company health coverage.

The Affordable Care Act defines full time employment as 30 hours or more per week, and requires companies to provide coverage for employees meeting that threshold. This put the company in violation of ERISA, which prevents discrimination against an employee for the purposes of denying them coverage, according to the lawsuit.

A settlement has been preliminarily approved in the lawsuit filed against Dave & Buster’s (D & B) by current and former employees alleging the company’s nationwide reduction of employees’ work hours was motivated by an intent to reduce costs for the company by restricting employee eligibility for the company health plan. D & B has reportedly agreed to pay more than $7.4 million to workers whose scheduled hours were cut.

Background

The Affordable Care Act (ACA) became law on March 23, 2010. The ACA’s employer mandate requires employers with more than 50 full time employees to offer health insurance to 95% of their full-time employees or pay penalties. The ACA defines “full time” as working 30 or more hours a week. Prior to the ACA, many employers offered health insurance to employees who worked at least 35 or 40 hours per week. Those employers were faced with the choice of expanding the eligibility criteria of their health plans, or risking penalties under the ACA.

The Employee Retirement Income Security Act of 1974 (ERISA) places certain duties on private employers that sponsor certain employee benefit plans. One of the protections under ERISA prevents anyone, including an employer, from discriminating against a plan participant for the purpose of interfering with a right or the attainment of a right protected by ERISA. Eligibility for health insurance is protected by ERISA.

Marin v. Dave & Buster’s, Inc.

According to the lawsuit filed in May of 2015, in response to the ACA employer mandate, D & B decided to manage its employee work schedules in order to restrict the number of hours employees could work per week. It was alleged that D & B reduced employees’ scheduled work hours specifically to limit employee eligibility for health insurance for the purpose of minimizing costs imposed by the ACA. There were two outcomes of the schedule reductions that became the subject of the lawsuit:

Some employees that were enrolled in D & B’s group health plan lost eligibility

Some employees that were eligible to enroll for D & B’s group health plan lost eligibility

The lawsuit was significant because it alleged that D & B violated ERISA when it chose to reduce its employees’ scheduled hours to avoid the ACA penalties, on the theory that intending to eliminate or prevent eligibility for the health insurance plan was prohibited interference under ERISA §510. Initially, D & B denied all the claims made in the lawsuit and tried to have the case dismissed. The Court denied the motion to dismiss and the parties proceeded with the litigation while negotiating a settlement. Ultimately, a settlement was reached and preliminarily approved by the court on December 18, 2018. A final approval hearing is scheduled in May of 2019.

Employer Considerations

As with most settlements, there is unlikely to be any admission of wrongdoing on the part of D & B or any bright lines established by the court. However, the D & B litigation and preliminary settlement serve as an important reminder of the ERISA fiduciary rules and potential consequences when these rules aren’t followed. While the employer mandate forced many employers to evaluate their plan eligibility rules to understand potential penalty exposure and risks, as the D & B case illustrates, careful consideration of the ERISA fiduciary rules should also be a part of this evaluation.

As noted above, the employer group health mandate required employers to evaluate the best way to manage those costs. Instead of cutting employee hours and making fewer employees eligible for coverage, the ruling makes it clear that employers cannot restrict employee access to health benefits under ERISA. The optimal approach is to identify a solution that reduces overall costs while providing a broad range of benefit options to meet price points and benefit levels that collectively meet the minimum value and affordability requirements. The result is ERISA and ACA compliance providing comprehensive health benefit access so that more people are covered while retaining control over the costs.

Our self-insured group health plans can help employers tailor their coverage to the unique needs of their entire employee base, eliminating the waste of blanket premiums and delivering a savings of up to 25%. Companies of all sizes should learn from D&B’s mistake here, and consider self-insuring as an alternative to way to save money.

Learn more about self-insured health plans and if they might be right for your needs.